CYNTHIA WATERS, et al., PETITIONERS v. CHERYL R. CHURCHILL et al.

on writ of certiorari to the united states court
of appeals for the seventh circuit

[May 31, 1994]

Justice Souter, concurring.

I join Justice O'Connor's plurality opinion stating
that, under the Free Speech Clause, a public employer
who reasonably believes a third party report that an
employee engaged in constitutionally unprotected speech
may punish the employee in reliance on that report,
even if it turns out that the employee's actual remarks
were constitutionally protected. I add these words to
emphasize that, in order to avoid liability, the public
employer must not only reasonably investigate the third party report, but must also actually believe it. Under
the plurality's opinion, an objectively reasonable investigation that fails to convince the employer that the
employee actually engaged in disruptive or otherwise
unprotected speech does not inoculate the employer
against constitutional liability. A public employer
violates the Free Speech Clause, that is, by invoking a
third party report to penalize an employee when the
employer, despite the report and the reasonable investigation into it, believes or genuinely suspects that the
employee's speech was protected in its entirety or in
that part on which the employer purports to rely in
taking disciplinary action; or if the employer invokes the

third party report merely as a pretext to shield disciplinary action taken because of protected speech the employer believes or genuinely suspects that the employee
uttered at another time.

First Amendment limitations on public employers, as
the plurality explains, must reflect a balance of the
public employer's interest in accomplishing its mission
and the public employee's interest in speaking on
matters of public concern. See ante, at 5-12. Where an
employer penalizes an employee on the basis of a third party report of speech that the employer should have
suspected, based on the content of the report and the
employer's familiarity with the employee and the
workplace, to have been constitutionally protected, this
balance must reflect the facts that employees' speech on
matters of public concern will often (as we said of
employees' union activities) "engende[r] strong emotions
and giv[e] rise to active rumors," and, critically, that "the example of employees who are discharged on false
charges would or might have a deterrent effect on other
employees." NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964); see also Rankin v. McPherson, 483 U.S. 378, 384 (1987) (" `[T]he threat of dismissal from public employment is . . . a potent means of inhibitingspeech' ") (quoting Pickering v. Board of Ed. of Township
High School Dist., 391 U.S. 563, 574 (1968)). As the
plurality's opinion frankly recognizes, permitting public
employers to punish employees in reliance on third party
reports "involve[s] some risk of erroneously punishing
protected speech." Ante, at 14.

This is a risk that the public employer's interests
justify tolerating, as the plurality's opinion explains, but
only when the public employer's conduct was reasonable,
see ante, at 14-16, and only when the employer "really
did believe" the third party report, ante, at 17; see alsoante, at 18 (an employer need not investigate further " `if
the belief an employer forms supporting its adversepersonnel action is "reasonable" ' ") (citation omitted);
ante, at 15 (courts must "look to the facts as the
employer reasonably found them to be") (emphasis
omitted).
[n.*]
A public employer who did not really believe
that the employee engaged in disruptive or otherwise
punishable speech can assert no legitimate interest
strong enough to justify chilling protected expression,
whether the employer affirmatively disbelieved the third party report or merely doubted its accuracy. Imposing
liability on such an employer respects the "longstanding
recognition that the First Amendment's primary aim is
the full protection of speech upon issues of public
concern, as well as the practical realities involved in the
administration of a government office." Connick v.
Myers, 461 U.S. 138, 154 (1983).

Accordingly, even though petitioners conducted an
objectively reasonable investigation into Ballew's report
about respondent Churchill's conversation with Perkins Graham, I believe that petitioners' dismissal of Churchill
would have violated the Free Speech Clause if after the
investigation they doubted the accuracy of the report
and fired Churchill for speech, or for a portion of her
speech, that they genuinely suspected was nondisruptive
(assuming that the speech was actually on a matter of
public concern). Though under the plurality's opinion the
presentation of such an argument is open to Churchill
on remand, Churchill would not, of course, have to rely
on it if she can establish that, despite the reasonable
investigation, petitioners believed that Churchill said
nothing disruptive in her conversation with Perkins Graham; that they believed that Churchill made somenondisruptive remarks to Perkins Graham and fired her
because of those remarks; or that they fired her because
of nondisruptive comments about cross training they
knew she made earlier (again, assuming in each case
that the speech at issue was on a matter of public
concern).

Though Justice O'Connor's opinion speaks for just
four Members of the Court, the reasonableness test it
sets out is clearly the one that lower courts should
apply. A majority of the Court agrees that employers
whose conduct survives the plurality's reasonableness
test cannot be held constitutionally liable (assuming the
absence of pretext), see ante, at 17-19 (plurality opinion); post, at 1-8 (Scalia, J., concurring in the judgment); and a majority (though a different one) is of the
view that employers whose conduct fails the plurality's
reasonableness test have violated the Free Speech
Clause, see ante, at 14-16 (plurality opinion); post, at
1-5 (Stevens, J., dissenting); see also post, at 4, n. 4
(Stevens, J., dissenting) ("Justice O'Connor appropriately rejects [Justice Scalia's] position, at least for
those instances in which the employer unreasonably
believes an incorrect report concerning speech that was
in fact protected and disciplines an employee based upon
that misunderstanding. I, of course, agree with Justice
O'Connor that discipline in such circumstances violates
the First Amendment"). Accordingly, the plurality
opinion may be taken to state the holding of the Court.
See Marks v. United States, 430 U.S. 188, 193-194
(1977) (discussing Book Named "John Cleland's Memoirs
of a Woman of Pleasure" v. Attorney General of Mass.,
383 U.S. 413 (1966)).

Notes

*
In addition, and also because of the risk of chilling protected
expression, the public employer must believe that the discipline chosen
is an appropriate, and not excessive, response to the employee's speech
as reported. I do not understand respondents in this case to raise any
claim that the discharge was pretextual in this respect.